Ikoro v Ezekiel-Hart (Residential Tenancies) - [2021] ACAT 72

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

IKORO & ANOR v EZEKIEL-HART (Residential Tenancies) [2021] ACAT 72

RT 175/2017
Catchwords: RESIDENTIAL TENANCIES – application for extension of time to appeal – 3.5 year delay – no adequate explanation for delay – no issue of principle – small dollar value decision – overall interests of justice – application refused

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 56, 60 Bankruptcy Act1966 (Cth) s 58

Subordinate

Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 38, 94

Cases cited: Commissioner for Social Housing v Williams [2017] ACAT 53

Ezekiel-Hart v Ikoro [2020] ACTSC 6
Ezekiel-Hart v Ikoro [2020] ACTSC 31
Ezekiel-Hart v Ikoro CS 22/2018 Magistrates Court unreported
Ezekiel-Hart v Reis [2017] ACAT 3
Ikoro v Ezekiel-Hart EM 260/2017 Magistrates Court unreported
Ikoro v Ezekiel-Hart EM 260/2017 Magistrates Court unreported

Tribunal: Presidential Member M-T Daniel

Date of Orders:  16 March 2021
Date of Reasons for Decision:         6 August 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          RT 175/2017

BETWEEN:
SUANU IKORO
First Applicant

VICTORIA IKORO
Second Applicant

AND:
EMMANUEL EZEKIEL-HART
Respondent

TRIBUNAL: Presidential Member M-T Daniel

DATE:16 March 2021

ORDER

The Tribunal orders that:

The application for an extension of time is refused and dismissed.

…………Signed……………..
Presidential Member M-T Daniel

REASONS FOR DECISION

On 15 March 2021 I heard an application by the respondent Chief Ezekiel-Hart for an extension of time in which to lodge an appeal. I reserved my decision, and on 16 March 2021 I delivered my decision with oral reasons, dismissing that application. The parties subsequently requested reasons for the decision.
Section 60 of the ACT Civil and Administrative Tribunal Act 2008 (the Act) provides that if a written request for reasons is made within 14 days of a decision being made, the tribunal must provide reasons for the decision. Where oral reasons were given, a copy of the transcript of the oral reasons may satisfy that requirement.
Subsection 60(4) specifies that section 60 does not apply to a decision under section 53 of the Act, or an order of a procedural nature. A decision on an extension of time application is not a decision under section 53 of the Act, it is also not a final order on a substantive application. It may well be within the meaning of the term ‘order of a procedural nature’.
In any event, given the litigious history between the parties, I have decided to provide reasons for the decision without considering any further whether I am obliged by section 60 to do so.
What follows below is my reasons.
Regrettably there is no transcript of the first five minutes or so of the oral reasons. Paragraphs 7 to 33 are therefore prepared from the draft reasons that I referred to on 16 March 2021. Paragraphs 34ff are the transcript of the oral reasons, with editing to add case references and remove slips of the tongue and infelicities of expression.

Background

This is an application by the respondent for an extension of time in which to lodge an appeal from a decision of the original tribunal handed down on 3 July 2017. That decision was in matter RT 175 of 2017. It concerned a claim filed in March 2017 by the applicants for amounts said to be payable to them by the respondent in relation to a residential tenancy agreement between the parties.
In that matter, the original tribunal was satisfied that there had been a residential tenancy agreement in place between the parties which ended on 28 February 2017, and the respondent was ordered to pay the applicants the sum of $2353.05 comprised of:
·        $460 rent from 15 to 28 April 2016;
·        $600 compensation for breach of contract;
·        $27.05 for water usage;
·        $516 for cleaning; and
·        $750 for gardening.
In his response in that matter the respondent at one point floated a claim for money he said was owed to him by the applicants for legal work he had done for them. This claim was not pressed before the original tribunal which quite rightly in my view noted that it was not an appropriate claim to ventilate as a cross-claim in the residential tenancy proceedings.
As I have noted, the decision was made by the original tribunal on 3 July 2017. This application for an extension of time to appeal is now brought some three and a half years after that decision.
In the meantime, the orders of the original tribunal have been the subject of enforcement proceedings in the Magistrates Court and the orders remain partly unsatisfied.
There appear to have been many pieces of litigation between the parties in both the Magistrates Court[1] and the Supreme Court[2] during which the respondent has raised his concerns with the orders of 3 July 2017, but this is the first time an application for appeal has been sought to be filed. This is despite the respondent advising the applicants by email on 12 July 2017, cc’d to the tribunal, that he was aware of the time to appeal and, it could be inferred, intended to appeal.
[1] Ikoro v Ezekiel-Hart EM 260/2017; Ezekiel-Hart v Ikoro CS 22/2018
[2] Ezekiel-Hart v Ikoro [2020] ACTSC 6; Ezekiel-Hart v Ikoro [2020] ACTSC 31
So, should an extension of time to appeal now be granted?

The documents, evidence and submissions

I have before me filed by the respondent:
(a)the application for an extension of time to appeal, lodged 23 February 2021, which attached a four page submission entitled ‘GROUNDS RELIED ON’ and a draft application for appeal dated 28 January 2021;
(b)a further four page outline of submissions for leave for extension of time lodged 15 March 2021; and
(c)further submissions made by email on 16 March 2021 annexing documents referred to by the respondent in his submissions.
I have before me the applicants’ response to the application for an extension of time, lodged by them on 12 March 2021. The applicants also provided a copy of the transcript of the hearing before the original tribunal, which the parties had but which was not on the tribunal file.
I have of course the file for matter RT 175 of 2017, and I have had the benefit of the parties’ oral submissions yesterday.
The respondent’s written submissions in relation to the application for an extension of time to appeal total eight pages; the applicant’s ran to four. I will not set them out in full in these reasons. However, it is useful to summarise the matters covered in oral submissions. I asked the parties in their oral submissions to focus on the following questions:
(a)Was there adequate explanation for the delay in lodging the appeal?
(b)Was there any prejudice to the applicants in defending any appeal due to that delay?
(c)Was there merit in the appeal?
(d)What did the interests of justice require?
In his oral submissions the respondent conceded that the application for appeal could have been lodged earlier, but he said he was waiting on reasons for the decision which he had requested by email on 6 July 2017 and which had not been provided. He said things were complicated by having a trustee in bankruptcy, and that he had taken the orders to the trustee in bankruptcy after they were made and expected the trustee to lodge the appeal. The respondent submitted there was no prejudice to the appellants in allowing an extension of time to appeal the decision. He submitted that the interests of justice clearly required an extension of time in which to lodge the appeal.
In relation to the merits of the appeal, the respondent emphasised the following asserted errors:
(a)the fact that he had been an undischarged bankrupt at the time the orders were made;
(b)the failure of the original tribunal to insist that the applicants comply with a subpoena the respondent had issued for production of bank statements;
(c)the failure of the original tribunal to give reasons for its decision which he submitted was an error of law and made the decision a nullity; and
(d)factual errors in the original decision, noting that if leave to appeal was granted, it would be open to the appeal tribunal to form a different view on the credit of witnesses and thus reach different conclusions of fact.
The applicants opposed the extension of time being granted and said that to do so would not be in the interests of justice. In their oral submissions they said that they believed the application for an extension of time was frivolous and vexatious because there was no cost to the respondent to make that application, he had the time to do it, and in their view was trying to vex them. They submitted that the respondent had been unhappy with the decision of the original tribunal, and unhappy in the Magistrates Court when decisions went against him. They said that due to the costs of all of the related proceedings the respondent now owes them over $30,000, but closer to $40,000 if interest was included.
The applicants submitted that there was no adequate explanation for the delay in lodging the appeal.
In relation to the prospects of success on appeal, they submitted that they did not know about the bankruptcy when the matter was before the original tribunal and only found out about it when they went to enforce the orders; it was not referred to in the proceedings before the original tribunal. In relation to the unanswered subpoena for bank statements, the applicants submitted that the original tribunal was correct in not requiring compliance – because the respondent had asserted he had paid by cash so the bank statements would not have been of assistance to the original tribunal in determining the question of rent owed.

The law

Under Rule 94 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 an application for appeal from a decision of the tribunal must be lodged within 28 days after the date of the orders to be appealed from, or such further time the tribunal allows.
Rule 38 permits the tribunal to, by order, extend the time for lodging an application for appeal.
The principles to be applied when considering an application for an extension of time to appeal are set out in a number of cases. The approach is most conveniently summarised in Commissioner for Social Housing v Williams (Appeal) [2017] ACAT 53. Factors to be considered include the explanation for the delay and length of the delay; the significance of the case on appeal; the prospects of success on appeal or merits of the case; the prejudice to the other party if leave is granted; and overarchingly what do the interests of justice (both for the individual case and systemically) require?
I have had regard to the application, draft appeal and submissions by the respondent, the submissions of the applicants, the transcript of the proceedings and file for the proceedings. I turn to consider the particular factors.

The Delay

The length of the delay is three and a half years. The respondent’s explanation for the delay is minimal.
It is clear that the respondent knew about his rights to appeal and about the existence of the 28 day time limit to appeal, because of his email to the applicants on 12 July 2017 in response to their demand for payment, which was cc’d to the Tribunal:
Dear Suanu and Victoria Ikoro,
I am not to give you legal advice for your matter, a matter which was clearly stated that appeal is imminent because the member misapprehended the facts, you failed to comply with subpoena that will expose truth you were allowed and my subpoena money wasted, you claimed you never till September know about the position occupied, I will bring evidence that you were lying under oath, you did not ask for increased rent you were given that when the facts are available to show that both parties advertised the other halve [sic] of the house for $230 per week. Appeal against decision has time, if you want to proceed with whatever you may wish I am not the one to advise you. The decision was clearly unjust, and I have right to appeal unjust decision. I do not care about who is using you, but my right under the law and equity cannot in my life time be abrogated to benefit anyone, save I voluntarily give out such right. [emphasis added]
The respondent also ventilated his concerns about the decision of 3 July 2017 on multiple occasions in other jurisdictions and was told on such occasions that he had to query that decision in the ACAT, not in those proceedings. Yet the application for appeal is sought to be lodged only now.
In his ‘GROUNDS RELIED ON’ document at paragraphs 10 to 13 the respondent submitted in relation to the delay (referring to himself as the Appellant and the applicants as the Respondents):
10.    The Appellant was unable to make immediate appeal for fear of retribution from the Tribunal Member who had threatened the Appellant at the hearing with the Law Society, and at that time the Appellant was in Tribunal with the Law Society looking for his certificate to feed and one of the witnesses to the Law Society was a friendly supporter with affidavit for the Respondents.
11.    The fear of the appellant was compounded when the Appellant sought reason for the decision and none was provided.
12.    The Appellant went to meet the Trustee in Bankruptcy and explained the circumstances, the Trustee in Bankruptcy said the Respondents did not serve him with any Tribunal process, and did not obtain the leave of the Court to commence that process as required under the rules, and that in any event the Respondents benefitted from many of my services more than the money order.
13.    After 60 days of the money order, I believed that the money order had expired given the legal questions of service to the Trustee or that the Trustee had addressed the Respondents money order as they approached the Trustee…
I find the idea of fear of the tribunal member as an explanation for delay unconvincing given the extensive history of litigation between the respondent and the Law Society, and the Law Society it seemed being aware of the residential tenancy proceedings.[3]
[3] In an email to the Tribunal dated 26 June 2017 the applicants foreshadowed that if the respondent proceeded with his proposed counterclaim for legal services, a witness would be called from the Law Society of the ACT.
I do not consider that there is any adequate explanation for the delay. Given the small sum of money involved in this matter, in the overall interests of justice and specifically given the need for finality in decisions, the need for proportionality, and the costs to the public and parties if an extension of time were granted, this lack of an adequate explanation would itself be fatal to the application for an extension of time. However, my consideration of the other factors relevant to that decision would also lead me to dismissal of the application.

Significance of the case on appeal, and prospects of success

The matter now sought to be appealed was a routine residential tenancy ‘end of lease’ application. As set out earlier, it was a relatively small dollar value matter, although significant to the parties. The errors in the decision asserted by the respondent are set out in the draft application for appeal attached to the application for an extension of time, as follows:
1 The questions of law or fact involved, that is the errors of fact or law you say have been made
1      Whether the Appellant was denied procedural fairness and was oppressed by failure of the Tribunal below to enforce the Tribunal orders of subpoena against the Respondents to produce document which could have elicited the truth and resolved the whole matter in favour of the Appellant?
2 Whether the Respondents were subject to section 70 of the ACAT Act? If yes whether by consciously misleading the Tribunal by lying under oath that its rent was $260 whereas the internet publication of the Respondents supported the Appellant that the agreed and published rent was $230, and wether [sic] the Respondents has committed perjury and caused miscarriage of justice.
3      Whether the Respondents by lying with intent to mislead the Tribunal obtained unjust enrichment by causing the Tribunal to award it amount that it knew or ought to know that it was not entitled to?
4      Whether the Respondents committed perjury to obtain unjust enrichment by lying under oath that it did not know where the Appellant was in the rented property whereas the second Respondent at the least attended the property with a locksmith who confirmed that the Respondent knew where the Appellant was and she did collected hoover from the room that the Appellant was after the locksmith fixed the Appellant door with lock, that is confirmed by the locksmith.
5      Given that 4 months growth of bushes around property, and cleaning of the property at the beginning of the rent in May 2016 was carried out by the Appellant; whether the Tribunal decision was equitable and was correct to award cost of additional cleaning to the Respondents at the end of the 10 months’ rent simply because after the Respondent admitted that the property was “neat and tidy” their agent requested a receipt from professional to give to new tenant, and that the cost was to be visited on the Appellant in the circumstance that the respondents did not give the appellant professional receipt at the beginning of the rent?
6      Whether the Tribunal has jurisdiction to hear the matter in the first instance given that the Appellant was bankrupt under a Federal law at the time and the Respondents was aware of it and refused to serve the Trustee in Bankruptcy the Tribunal process?
7      Whether it is in the interest of justice and to avoid fraud on the Tribunal which enlivened public interest to review the decision and correct the errors identified to avoid unjust enrichment of the Respondents and prevent oppression of the Appellant.
8      Whether the Respondents in failing within 3 months to make application to the Tribunal regarding the failure of the Trustee in bankruptcy to satisfy the orders of the Tribunal whether the Respondent was entitled to Application for enforcement in the Magistrates Court.
2 Any additional evidence you wish to introduce:
9      The additional evidence that I wish to introduce are the internet evidence for the publication of the rent amount in the internet in April 2016, Diagram evidence confirmed by the Respondent’s locksmith showing where I was when the Respondent borrowed my hoover to clean the rubbish made by the locksmith, and the subpoena evidence of bank account where the Appellant paid money for the period still with the Respondents in flagrant disobedient to the orders of the Tribunal
3 Reasons why the appeal should proceed
10     The public interest in preventing unjust enrichment of the Respondent demand review of the decision to return the monies that the defendants were not entitled to but for the lies under oath to the Tribunal
11     The public interest in preventing litigants working in concert to lie and defraud the Tribunal to obtain undue advantage and pervert the course of justice demands a review of the decision to discourage members of the public from engaging in similar conduct, and that there will be consequence when caught to have lied to obtain unjust enrichment
12     The Appellant will suffer oppression and irreparable losses if the decision is not reviewed in that, the Respondents agreed with their lawyer to lie once more to the magistrate Court that a White Pajero children’s car of the Appellant if sold will fetch over $7000 and cover their money order, after deceiving the magistrate court to obtain the order to sell the car, the Respondents returned back looking for more money saying that they were only able to obtain $329, an amount not up to ½ of what the appellant spent to service the fuel pump and tyres before the car was taken
13     The Respondents have also accepted an offer by a senior lawyer who has been wanting to kill the Appellant to use the Police to intimidate or kill the Appellant by agreeing with the senior lawyer and the senior lawyer in concert reported the Appellant to the police with lies on behalf of the Respondents with intent that the police will act on the lies to intimidate the Appellant or harm him.
14     The difficulty of early appeal was compounded because Appellant asked for reason for the decision but none was provided at the relevant time and the appellant was threatened report to the law society for mentioning appeal given that the Appellant knows that the Respondents were lying but with unsworn witness interjecting at will in the hearing and the conduct accepted by the Tribunal Member and without providing the subpoena document the Tribunal Member accepted their testimony without knowing that they were lying to obtain unjust enrichment.
15     The Appellant will suffer gross injustice, oppression and losses if the Tribunal fail to review the decision and correct the unjust enrichment and return the money taken from the Appellant by the Respondents.

I am not going to go in line by line detail through the respondent’s proposed errors of fact or law, I am going to group them and focus on the main ones.
One of those which I have already touched on is an asserted failure of the tribunal to give reasons for the decision. A perusal of the transcript shows that the original tribunal gave their reasons during the hearing as they progressed. The ACT Civil and Administrative Tribunal Act 2008, section 60 provides that a written request for reasons, if made within a specified time after the decision is handed down, must be complied with. There was no written request for reasons made by either the respondent or the applicants.
Now, the respondent did send an email to the registry soon after the decision which requested the “headings” for the order awarded, or for the amount ordered to be paid. This was not interpreted as a request for reasons for the decision. In my view, that was entirely correct. It was not a request for reasons for the decision. There is simply no merit in the ground of appeal that reasons were requested and were not provided. There is no merit, as I have said earlier, in the suggestion that the reason for delay was that a request for reasons had been made and not complied with.
The next potential error in the decision is that the decision is oppressive and that the applicants have been unjustly enriched as a consequence of lying to the original tribunal. These are similar arguments that were also put to the Magistrate's Court and the Supreme Court. These global arguments were not developed in any coherent way in the submissions, and I am not satisfied that there is any merit in those overarching views. Just because an order is made against you, doesn’t make the proceedings oppressive. Just because the other side got the order – and you would disagree with the basis of it – doesn’t mean it is unjust enrichment.
The words used are emotive but the foundation for them is not established, so I am not satisfied that there is any real merit in those grounds as they were set out in the respondent’s documents.
There is next a question of whether the tribunal, as asserted, erred in law in an approach taken to the lack of a receipt for professional cleaning, and whether the tribunal failed to give sufficient consideration perhaps to the advertised rent for the premises. There are a number of factual errors asserted, and these errors which are asserted by the respondent are said to result in the original tribunal's decision being “affected by fraud”, and therefore “a nullity”.
The transcript of the hearing shows the tribunal considered all of the evidence about cleaning, considered all the evidence before it about rent payable and reached a conclusion. The fact that the conclusion that was reached was not that advocated for by one party, does not make that decision based on a fraud and it does not make it a nullity. It is just that one party's evidence or submissions was preferred over the others. There is no merit in the argument that the tribunal's decision is a nullity, insofar as the platform for that argument is that the tribunal erred in the way it treated the cleaning receipt, the question of the rent for the premises, and the advertised rent. I am not satisfied the tribunal made any errors of law in those respects. So I am not satisfied, again, that there is any merit in those arguments.
Discussion at the hearing yesterday focused more on the other two general complaints about the original decision. The first of which was the failure of the tribunal to insist on the applicants producing documents as required by subpoena at the original hearing. The respondent submits that the original tribunal's failure to insist on the applicants’ production of bank records led to an incorrect finding of fact that he had not paid two weeks of rent, and it was a denial to him of procedural fairness in the presentation of his case. I do not agree with that submission.
The transcript of the hearing shows that there was no contest of the amounts of rent paid directly to the bank account. There was a factual contest about alleged payments made by cash. In those circumstances, it would have been unlikely that a reference to the bank statements would resolve the area of dispute. It is often the case that a litigant hopes that by reference to the other party's records something may come to light which demonstrates that party is not a witness of truth: such a subpoena in court proceedings might be referred to as a ‘fishing expedition’. In the tribunal it's not consistent with the tribunal's objectives – that of being quick, efficient, and inexpensive – if we allow parties to embark on such an enquiry of hope to see what they can find.
We permit the issue of subpoenas and adjourn hearings to allow production of documents only where the documents sought are clearly relevant to the facts in issue.[4] These documents were not relevant to how the factual issues developed at the hearing. It would have, in my view, been inappropriate for the member to adjourn the very short listed hearing of this straightforward matter to require the other party to produce documents of such limited relevance. There is certainly no error demonstrated by the member's failure to “insist on compliance”, given how the hearing unfolded before her.
[4] And sufficiently so to warrant the delay in resolution of the proceedings and costs to the parties and public caused by that delay.
The other area where we focused a lot of attention in the oral submissions was on the potential lack of the tribunal's jurisdiction to conduct the hearing on 3 July 2017 due to the respondent being an undischarged bankrupt. By reference to the decision in Ezekiel-Hart v Reis [2017] ACAT 3, which is a discrimination matter, it seems the respondent became bankrupt on 6 June 2013, and he gave evidence before me yesterday that he remained an undischarged bankrupt up until around August 2017. So certainly at the time that he was participating in the original proceedings, he was an undischarged bankrupt.
The respondent asserted in his documents and orally that after the decision was made on 3 July 2017 he took the orders to Mr Kazar, the Trustee in Bankruptcy it seems to arrange payment, but Mr Kazar said he would not pay them and said that he had not been served with notice of the proceedings. It is these facts that the respondent relies upon to support an argument that the proceedings before the original tribunal were potentially a nullity, that the tribunal had no jurisdiction. The argument was put that the Trustee in Bankruptcy had to be served with notice of the original proceedings but there was no specific reference made to where this requirement comes from.
I note that similar arguments were raised apparently in the Magistrates' Court enforcement proceedings. I do not have a copy of the decision in those proceedings, but I understand that in the end the magistrate found that the respondent’s status as an undischarged bankrupt was not an impediment to the enforcement proceedings. In the Supreme Court matter of Ezekiel-Hart v Ikoro ACTSC 6 [2020], her Honour Murrell CJ outlines this litigation history at paragraphs 6 to 15 and her Honour also touches on the question of the bankruptcy of the respondent at that point in time.
Section 58 of the Bankruptcy Act1966 (Cth) (Bankruptcy Act) does state that it is not competent for a creditor to institute proceedings in relation to “a provable debt” without first getting the leave of the court. But it is just not obvious to me how an amount found to be owing or said to be owing by the respondent in July 2017 in relation to a residential tenancy agreement and occupancy of premises occurring over 2016 and early 2017 could be provable in a bankruptcy that took effect, as I said, on 6 June 2013. It is the debts outstanding at the date of bankruptcy, as I understand things, which are provable in the bankruptcy. The respondent did not give me any submissions or explanation or draw any other connections which would support an argument that the proceedings before ACAT were a nullity on this basis.
Consequently, I cannot draw the conclusion that the mere fact of the respondent being an undischarged bankrupt on 3 July 2017 makes those proceedings incompetent. Even if they were incompetent, the orders are merely liable to be set aside. It is open to the respondent to apply to the tribunal under section 56 of the ACAT Act to have those orders set aside and to set out his full argument of how it is that they are required to be set aside because of his bankruptcy status. But he certainly has not made out that argument in this case.
I note in this respect the respondent said the applicants knew he was an undischarged bankrupt at the hearing on 3 July 2017. So, in his oral submissions he said this was evidenced by the transcript of the original proceedings. I could find no reference to it in the transcript. But his further email of today indicated that it was a reference in the applicants' submission. And as I see that there is a reference, in the applicants’ submissions to the original tribunal at page 5, paragraph 21, to the decision of Senior Member Beacroft in which the conclusion was stated that he was an undischarged bankrupt. So it could be inferred the applicants were aware of the bankruptcy. If that had any meaning for them, and certainly there's no evidence or submissions before me that they were required to do anything about those proceedings.
I should say for completeness, this: even if it were the case that I was satisfied that the proceedings before the original tribunal were, in this sense, incompetent, they are not beyond salvage. It is clear that it is open to the applicants to apply to a bankruptcy court such as the Federal Magistrates Court for an order nunc pro tunc, that is, an order 'now for then'. That is an order that even though they didn’t have leave to bring those proceedings in 2017 before the original tribunal, the court will grant them that leave after the event, on the basis that it is in the interests of justice.
Had I thought there was any merit in the ‘undischarged bankrupt’ argument, the appropriate course would be for me to adjourn the application for leave for an extension of time for a specified period to allow the applicants to go to a bankruptcy court and seek after the event the permission that was required. The outcome of such an application would then be determinative of the proposed ground of appeal.
Similarly, if the respondent were to apply under section 56 to set the orders of the original tribunal aside on this basis, the applicants might well exercise their rights in a bankruptcy court to seek leave after the event as soon as they can.
So although I am not satisfied that there's anything in the 'I was an undischarged bankrupt' argument, if there was, I wouldn’t be granting an extension of time to appeal, I would be holding the application for an extension of time matter while the applicants investigate their options and take any necessary further steps.
Overall then, I am not satisfied that any of the proposed grounds of appeal have any or at least any sufficient merit such as to warrant an examination of the decision some three and a half years after it was made.

Prejudice due to delay

When I look at the factor of prejudice to the other party, there is no evidence of prejudice to the other party in contesting the appeal which is due to the delay in bringing the appeal, and that is really the sort of prejudice that we look at first of all. The applicants have submitted that there would be prejudice if the original decision was now to be set aside, because they have spent some significant sums of money seeking to enforce the judgment which would potentially be lost money if it was set aside, although that would be a matter for another court to determine.
The absence of prejudice to the applicants caused by the delay in bringing the application for appeal is not a determinative factor, it is only one of the multiple factors to be considered.

The interests of justice

So that brings me to the overarching factor, what does the interests of justice require? I have already adverted to the matter of Commissioner for Social Housing v Williams,[5] which sets out how the interests of justice in the individual case had to be considered also with the interests of the administration of justice and the public interest in the finality of the proceedings. All of those other aspects of the interest of justice have to be given their place in the decision-making framework.
[5] [2017] ACAT 53
These proceedings are for a small dollar value matter. It was heard in the usual way, resulting in an order for payment of under $2,500.
There were no significant issues of principle, although they are obviously significant issues to the parties. The issues of fact, while hotly contested, were not unlike issues ventilated every day in the tribunal. From an objective point of view, there are no significant issues of law in this case whether in terms of procedural fairness, in relation to the subpoena, or in terms of the original tribunal's jurisdiction within the terms of the Bankruptcy Act.
I accept though, the respondent feels genuinely dissatisfied with the decision and he has expressed that dissatisfaction clearly and loudly in various forums since that decision was handed down over three years ago.
Nonetheless, the decision was not challenged in the appropriate forum, which he knew was the appropriate forum, within the required time frame. It is not in the interests of justice for an extension of time to appeal the decision to now be granted some three and a half years after the decision was made. Accordingly, the orders that I will make are that the application for extension of time to appeal is dismissed.
I note in final comments that the applicants have submitted that this was a frivolous and vexatious application for extension of time to appeal. As I have said, it does seem the respondent genuinely feels aggrieved, genuinely feels concerned that the applicants have told lies to the tribunal and they have been believed, but it is not uncommon for one out of two litigants to feel that way when they are unsuccessful.
The fact that I am not granting an extension of time does not make this a frivolous and vexatious application. Even if it were, there is very little that would be a consequence of that finding. The tribunal does not have the power to order costs in relation to all frivolous and vexatious applications, only those that are brought in a planning, heritage, or tree protection jurisdiction. So even if it was a frivolous and vexatious application, the consequence would still be the same, the application for extension of time is dismissed.
………………………………..
Presidential Member M-T Daniel

Date(s) of hearing	16 March 2021
First Applicant:	In person
Second Applicant:	In person
Respondent:	In person